Wednesday, May 9, 2012

Mirkarimi's lawyers call ouster action political

Mayor Ed Lee's effort to oust suspended Sheriff Ross Mirkarimi for official misconduct is "transparently political" and relies on an illegally vague law while ignoring more than 100 years of precedent, Mirkarimi's attorneys wrote in briefs filed Tuesday.

Only twice before since the city's Charter was established in 1900 has a mayor tried to remove an elected official for misconduct; one involved murder, the other felony extortion and perjury.

Lee is seeking to oust Mirkarimi after he pleaded guilty to misdemeanor false imprisonment arising from a Dec. 31 argument with his wife where he grabbed her arm hard enough to bruise it.

"Mayor Lee's suspension of Sheriff Mirkarimi is absurd when considered in the light of historical precedent," one of the sheriff's attorneys, David Waggoner said in an e-mail after the brief was filed with the city's Ethic Commission, which must hold a fact-finding hearing before voting on whether the misconduct charges have merit.

The commission's recommendation will be forwarded to the Board of Supervisors, where nine of 11 votes would be needed to strip Mirkarimi of his job.

Lee maintains that Mirkarimi's guilty plea, which will keep him on probation for three-fourths of his term in office, makes him unsuitable to serve as sheriff, a job that includes overseeing the city's jail system.

The mayor has also accused Mirkarimi of trying to dissuade at least one witness from cooperating with the police investigation, an accusation Mirkarimi's attorneys say is "provably false."

"He did what he did. He committed a crime," countered Deputy City Attorney Sherri Kaiser, who is representing Lee. "The fact that (Mirkarimi) committed a crime is not a political conspiracy. These are just the consequences that follow on his own misconduct."

Kaiser also dismissed the argument that Mirkarimi's criminal actions don't rise to the level of removal from office.

"The definition of official misconduct is not whether or not the official committed a felony," Kaiser said.

Voters in 1995, in a broad overhaul of the City Charter, approved adding a definition of official misconduct that includes "conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers."

Mirkarimi's attorneys contend that definition is "unconstitutionally vague."

The sheriff's filing came as San Francisco Superior Court Judge Garrett Wong delayed for a week a hearing on releasing to the mayor a video of Mirkarimi's wife, Eliana Lopez, tearfully recounting the New Year's Eve incident to a neighbor the next day, showing her bruised arm and saying "this is the second time this is happening."

Lopez, who has supported her husband and denies abuse occurred, opposes allowing the video, which police obtained with a search warrant, from being used in the removal proceedings.

The mayor on Tuesday called it an "important piece of evidence."

"It does allow people to view what had happened at that time," Lee said, "and it sets the tone."

By John Cote, San Francisco Chronicle staff writer,

Source: The San Francisco Chronicle

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